of high trea son. The punishment of high treason, in general, is very solemn Punishment and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually (by connivance,h at length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and then cut down alive. 3. That his entrails be taken out and burned while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal.k The king may, and often doth, discharge all the punishment, except beheading, especially where any of noble blood are attainted. For beheading being part of the judgment, that may [93] be executed, though all the rest be omitted by the king's command. But where beheading is no part of the judgment, as in murder or other felonies, it hath been said that the king can not change the judgment, although at the request of the party, from one species of death to another. But of this we shall say more hereafter." In the case of coining, which is a treason of a different complexion from the rest, the punishment is milder for male offenders, being only to be drawn and hanged by the neck till dead." But in treasons of every kind the punishment of women is the same, and different from that of men. For, as the decency due to the sex forbids the exposing and publicly mangling their bodies, their sentence (which is to the full as terrible to sensation as the other) is to be drawn to the gallows, and there to be burned alive.p21 h33 Ass., pl. 7. 1 Hal., P. C., 382. This punishment for treason, Sir Edward Coke tells us, is warranted by divers examples in Scripture; for Joab was drawn, Bithan was hanged, Judas (21) But now, by the statute 30 Geo. III., c. 48, women convicted, in all cases, of treason, shall receive judgment to be drawn to the place of execution, and there to be hanged by the neck till dead. Before this humane statute, women, from the remotest times, were sentenced to be burned alive for every species of treason: Et si nale femme de ascune treson soit attainte, soit ars. Britt., c. 8.-[CHRISTIAN.] And now, by 54 Geo. III., c. 146, the judgment against a man for high treason is, in effect, that he shall be drawn on a hurdle to the place of execution, and be there hanged by the neck until he be dead, and that afterward his head shall be severed from his body, and his body, divided into four quarters, shall was emboweled, and so of the rest. 11 Hal., P. C., 351. See ch. 32. 1 Hal., P. C., 351. P 2 Hal., P. C., 399. be disposed of as the king shall think 1 The offense of forging or counterfeiting the great seal, &c., is now punishable only by transportation for life or for any term not less than seven years, or imprisonment for any term not exceed ing four nor less than two years. Vict., c. 84, s. 2. And the other offenses relating to the coin, which before these statutes amounted to treason, are now punishable, under the several sections of the stat. 2 Will. IV., c. 34, with transportation or imprisonment for various periods. These enactments are fully stated, post, p. 100, n. The consequences of this judgment (attainder, forfeiture, and corruption of blood) must be referred to the latter end of this book, when we shall treat of them altogether, as well in treason as in other offenses. 86 CHAPTER VII. OF FELONIES INJURIOUS TO THE KING'S PREROGATIVE. As, according to the method I have adopted, we are next to Offenses in jurious to consider such felonies' as are more immediately injurious to the the king's king's prerogative, it will not be amiss here, at our first en- prerogative. trance upon this crime, to inquire briefly into the nature and meaning of felony, before we proceed upon any of the particular branches into which it is divided. felony. Felony, in the general acceptation of our English law, com- Definition of prises every species of crime which occasioned at common law the forfeiture of lands or goods. This most frequently happens in those crimes for which a capital punishment either is or was liable to be inflicted; for those felonies which are ; called clergyable, or to which the benefit of clergy extends, were anciently punished with death in all lay or unlearned offenders; though now, by the statute law, that punishment is for the first offense universally remitted." Treason itself, says Sir Edward Coke,a was anciently comprised under the name of felony; and, in confirmation of this, we may observe that the Statute of Treasons, 25 Edw. III., c. 2, speaking of some dubious crimes, directs a reference to Parliament, that it may there be judged "whether they be treason, or other felony." [95] All treasons, therefore, strictly speaking, are felonies, though all felonies are not treason. And to this, also, we may add. that not only all offenses now capital are, in some degree or other, felony, but that this is likewise the case with some other offenses which are not punished with death; as suicide, where the party is already dead; homicide by chance-medley, or in self-defense; and in petit larceny or pilfering, all which are (strictly speaking) felonies, as they subject the committers of them to forfeitures. So that, upon the whole, the only adequate definition of felony seems to be that which is before laid down, viz., an offense which occasions a total forfeiture of either lands, or goods, or both, at the common law, and to which capital or other punishment may be superadded, according to the degree of guilt. To explain this matter a little further: the word felony, or felonia, is of undoubted feodal original, being frequently to be a 3 Inst., 15. (1) As the author also considers misdemeanors in this chapter, the proper title would be, "Of Offenses against the King's Prerogative."-[CHITTY.] (2) See ante, p. 39, n. 10. [ 96 ] Sir met with in the books of feuds, &c.; but the derivation of it has much puzzled the juridical lexicographers, Prateus, Calvinus, and the rest: some deriving it from the Greek øŋλos, an impostor or deceiver; others from the Latin fallo, fefelli, to countenance which they would have it called fallonia. Edward Coke, as his manner is, has given us a still stranger etymology; that is, crimen animo felleo perpetratum, with a bitter or gallish inclination. But all of them agree in the description that it is such a crime as occasions a forfeiture of all the offender's lands or goods. And this gives great probability to Sir Henry Spelman's Teutonic or German derivation of ite in which language, indeed, as the word is clearly of feodal original, we ought rather to look for its signification, than among the Greeks and Romans. Fe-lon, then, according to him, is derived from the two northern words, fee, which signifies (we well know) the fief, feud, or beneficiary estate; and Ion, which signifies price or value. Felony is, therefore, the same as pretium feudi, the consideration for which a man gives up his fief; as we say in common speech, such an act is as much as your life, or estate, is worth. In this sense it will clearly signify the feodal forfeiture, or act by which an estate is forfeited, or escheats to the lord. To confirm this, we may observe, that it is in this sense, of forfeiture to the lord, that the feodal writers constantly use it. For all those acts, whether of a criminal nature or not, which at this day are generally forfeitures of copyhold estates,d are styled felonia in the feodal law: "scilicet, per quas feudum amittitur."e As," si domino deservire noluerit;f si per annum et diem cessaverit in petenda investitura;8 si dominum ejuravit, i. e., negavit se a domino feudum habere;h si a domino, in jus eum vocante, ter citatus non comparuerit;"i all these, with many others, are still causes of forfeiture in our copyhold estates, and were denominated felonies by the feodal constitutions. So, likewise, injuries of a more substantial or criminal nature were denominated felonies, that is, forfeitures; as, assaulting or beating the lord ;k vitiating his wife or daughter, "si dominum cucurbitaverit, i. e., cum uxore ejus concubuerit;" all these are esteemed felonies, and the latter is expressly so denominated, "si fecerit feloniam, dominum forte cucurbitando."m And as these contempts, or smaller offenses, were felonies, or acts of forfeiture, of course greater crimes, as murder and robbery, fell under the same denomination. On the other hand, the lord might be guilty of felony, or forfeit his seigniory to the vassal, by the same acts as the vassal would have forfeited his feud to b 1 Inst., 391. e Glossar., tit. Felon. d See vol. ii., p. 284. • Feud., 1. 2, t. 16, in calc. f Ibid., 1. 1, t. 21. Ibid., 1. 2, t. 24. h Feud., 1. 2, t. 34; 1. 2, t. 26, § 3. i Ibid., 1. 2, t. 22. Ibid., 1. 2, t. 24, § 2. 1 Ibid., 1. 1, t. 5. m Ibid., 1. 2, t. 38; Britton, 1. 1, c. 22. the lord. "Si dominus commisit feloniam, per quam vasallus amitteret feudum si eam commiserit in dominum, feudi proprietatem etiam dominus perdere debet." One instance given of this sort of felony in the lord is beating the servant of his vassal, so as that he loses his service; which seems merely in the nature of a civil injury, so far as it respects the vassal. And all these felonies were to be determined "per laudamentum sive [97] judicium parium suorum" in the lord's court; as with us forfeitures of copyhold lands are presentable by the homage in the court baron. Felony, and the act of forfeiture to the lord, being thus synonymous terms in the feodal law, we may easily trace the reason why, upon the introduction of that law into England, those crimes which induced such forfeiture or escheat of lands (and, by a small deflection from the original sense, such as induced the forfeiture of goods also) were denominated felonies. Thus it was said that suicide, robbery, and rape were felonies, that is, the consequence of such crimes was forfeiture; till, by long use, we began to signify by the term of felony the actual crime committed, and not the penal consequence. And upon this system only can we account for the cause why treason in ancient times was held to be a species of felony, viz., because it induced a forfeiture. Hence it follows that capital punishment does by no means enter into the true idea and definition of felony. Felony may be without inflicting capital punishment, as in the cases instanced of self-murder, excusable homicide, and petit larceny; and it is possible that capital punishments may be inflicted, and yet the offense be no felony; as in case of heresy by the common law, which, though capital, never worked any forfeiture of lands or goods," an inseparable incident to felony. And of the same nature was the punishment of standing mute, without pleading to an indictment, which at the common law was capital, but without any forfeiture, and therefore such standing mute was no felony. In short, the true criterion of felony is forfeiture; for, as Sir Edward Coke justly observes,P in all felonies which are punishable with death the offender loses all his lands in fee-simple, and also his goods and chattels; in such as are not so punishable, his goods and chattels only. The idea of felony is, indeed, so generally connected with [98] that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And, therefore, if a statute makes any new offense felony, the law implies that it shall be punished with death, viz., by hanging, as well as with forfeiture; unless the offender prays the benefit of clergy; which all felons are entitled once 1 Hawk., P. C., 107; 2 Hawk., P. Feud., 1. 2, t. 26 and 47. C., 444. |